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Untied States v. Benitez

August 9, 1996




Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 CR 176--James B. Zagel, Judge.

Before COFFEY, DIANE P. WOOD and EVANS, Circuit Judges.

COFFEY, Circuit Judge.



Maria Benitez appeals her conviction and sentence for attempting to possess with the intent to distribute multiple kilograms of cocaine, in violation of 18 U.S.C. sec. 846. We affirm.

I. Background

The government's investigation of Maria Benitez's drug trafficking activities arose from the work of a confidential informant, a former drug dealer named Tony Varela. In 1991, Varela was arrested by agents of the Drug Enforcement Agency while in possession of three kilograms of cocaine; Varela was charged and pled guilty to conspiring to sell cocaine (the exact terms of Varela's plea agreement are not in the record before the court). As part of a plea agreement to receive a reduced sentence, Varela agreed to assist the DEA as a confidential informant and participated in fifteen to twenty investigations, leading the DEA to his prior contacts as a drug dealer.

Varela was incarcerated in the Will County Jail in Joliet, Illinois, and was serving a sixteen-month term of imprisonment for his cocaine conviction. While incarcerated, Varela came in contact with Kevin Benitez, son of Maria (the record fails to reveal why Kevin Benitez was in the jail) and told him that he was a drug dealer. Kevin Benitez in turn introduced Varela to Maria by telephone and Varela and Maria agreed to get together upon his release from confinement. Varela advised an agent from the DEA about the conversation and the agent instructed Varela to make contact with Benitez. The DEA arranged for Varela to be wired with a microphone for recording his conversations, as well as a listening device on his phone in order that his conversations with Maria would be recorded.

After his release in October 1993, Varela telephoned Maria Benitez on December 13 at her bar, the Estrella de Plata, in Chicago and they agreed to meet in the future at her tavern. Shortly after Varela dropped off his beeper number with one of her tavern employees in the morning, Benitez paged Varela and arranged to meet him later in the week. During the meeting, Benitez told Varela that she had just received five "blocks," which Varela understood to mean five kilos of cocaine. Benitez also advised Varela that the cocaine was not great quality, but Varela replied that the stuff he could get would be of a better quality. However, Benitez stated that she was not interested in purchasing at this time because there was too much police activity to make a purchase.

On February 19, 1994, Varela again met with Maria Benitez at the Estrella de Plata. In a conversation recorded by the DEA, Benitez discussed several individuals who had recently been arrested for drug dealing, including Rogelio Elisondo who upon being taken into custody was found in possession of 240 kilos of cocaine, as well as lamenting the risks of being robbed of large quantities of drugs. Varela stated that he was receiving a shipment of cocaine the following week and Maria asked the price; Varela replied that he could give her a good price. At that time, Maria Benitez stated that she did not trust certain suppliers, and she went on to recite the names of various individuals who had recently been murdered while engaging in the drug trade.

On February 25, 1994, Benitez paged Varela and the two talked again. In this recorded conversation, Benitez asked Varela whether he had any "horses" for her "ranch." Varela testified at trial that "horses" were a code word for kilos of cocaine, and that she was really asking whether there was cocaine available for sale. *fn1 Varela told Benitez that "horses" were available and the two agreed to meet at the bar the following day for further discussions. Accordingly, the next day, Benitez and Varela conducted their meeting in the basement of the Estrella de Plata and discussed the price of the drugs. *fn2 On March 2, 1994, Varela called Benitez and let her know that he had "work" for the "ranch," meaning that he had available kilos of cocaine for sale. However, Benitez postponed the drug transaction, saying she was "too damn broke . . . but maybe it will change later on." On March 5, Varela met Benitez at the bar. She told him that she had purchased "merchandise" (which, according to Varela, was another code word for cocaine), but it was too expensive. Varela offered to sell cocaine to Benitez on credit, giving her four kilos if she agreed to pay up front for two kilos. Benitez at this time advised Varela that she used to sell ten to twelve kilos a week before cocaine became so expensive, and now she was only able to move eight kilos a week. She displayed a letter to Varela that she had received from Oscar Aguilar, a drug dealer who was serving a prison sentence for possession of cocaine. Benitez informed Varela that Aguilar had been arrested while in possession of 38 kilograms of cocaine, but that 10 of those kilos were hers.

On March 10, 1994, Varela contacted Maria Benitez and invited her to his apartment in Justice, Illinois to inspect some "beautiful girls from Mexico." Varela testified that his reference to "girls from Mexico" was another code phrase for kilos of cocaine. Benitez agreed and stated she wanted to make sure that the girls were "clean," which meant that she wanted to ensure that the cocaine was of a high purity level. Unbeknownst to Maria, the apartment was owned by the DEA and was rigged with microphones and a hidden camera. On March 19, 1994, Varela picked up Benitez at the bar and drove her to the designated apartment. At the apartment, Benitez stated to Varela that she had people waiting with money and she could "push" fifteen a week, which Varela testified meant she could sell fifteen kilos of cocaine a week. Varela called his "brother-in-law" (in reality a DEA agent posing as Varela's accomplice), who brought a sample of Varela's cocaine to the apartment. Benitez inspected the cocaine by rubbing it between her fingers and determined that it was 94 percent pure (at trial the government testified that in fact the cocaine was 93 percent pure). After some further negotiation, Benitez finally agreed to pay Varela up front for two kilos of cocaine for $30,000 and in turn he would give her two more kilos on credit; Varela then drove Benitez back to the bar and arranged to meet with her later in the evening at the DEA apartment to consummate the drug deal.

That evening Benitez and Varela met at the DEA apartment. After Benitez and Varela reiterated the terms of the deal, Benitez produced a large paper bag stuffed with bundles of cash. As Benitez was counting out the money, DEA agents entered and arrested her.

A federal grand jury delivered an indictment against Benitez for attempting to possess with the intent to distribute multiple kilogram quantities of cocaine, in violation of 18 U.S.C. sec. 846. Benitez entered a plea of not guilty, and she contended at trial that she had been entrapped by the government into purchasing the cocaine. However, an undercover Chicago Police Officer (Alfonso Bautista) testified that during an investigation unrelated to the DEA's present investigation, he had posed as a drug dealer and had tape recorded Benitez negotiating the purchase of kilogram quantities of cocaine from him. These transcripts were read into the record at trial. *fn3 Additionally, in order to rebut her defense of entrapment, the government provided evidence that Benitez had been convicted in 1982 of conspiring to sell large quantities of heroin.

The jury convicted Benitez of the crime charged. After a sentencing hearing, the district court sentenced her to 168 months imprisonment, to be followed by 15 years of supervised release, and imposed a fine of $200,000 and a special ...

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